New York State Court of Claims

New York State Court of Claims

DAVIDSON v. THE STATE OF NEW YORK, #2004-028-545, Claim No. 105260, Motion No. M-67232


Claimant's motion for summary judgment is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Michael W. FriedmanAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 21, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion pursuant to CPLR 3212 for partial summary judgment:

1) Notice of Motion and Supporting Affidavit of Chester Davidson, filed July 14, 2003 (Davidson Affidavit) with annexed Exhibits A-J[1].

2) Affirmation in Opposition of Assistant Attorney General Michael W. Friedman,

filed September 9, 2003 (Friedman Opposition) with annexed Exhibits A-G,

3) "Reply to Opposition For Summary Judgment" of Chester Davidson filed

September 18, 2003 (Davidson Reply) with annexed Exhibits A-D[2].

Filed Papers: Claim, filed November 26, 2001; Answer filed January 2, 2002.

The facts of the underlying Claim remain straightforward. Claimant, at all times relevant an inmate, alleges the Defendant was negligent when it dispensed the wrong prescription medication to Claimant upon the refill of an existing prescription (Claim, ¶ 7). Claimant further alleges that he was the subject of retaliatory discipline in violation of Correction Law §138 for reporting the aforementioned negligence (Claim, ¶ 8).

The rule governing summary judgment is well established: "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562). "[R]egardless of the sufficiency of the opposing papers", in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable (Ayotte v Gervasio, 81 NY2d 1062, 1063, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion.

Claimant asserts that the doctrine of res ipsa loquitur compels the Court to enter judgment in his favor. Defendant opposes the motion referencing issues of fact by Assistant Attorney General Friedman's affirmation and the exhibits appended to his Affirmation in Opposition.

In New York it is the general rule that submission of the case on the theory of res ipsa loquitur is warranted only when the plaintiff can establish the following elements: "'(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff'" (Dermatossian v New York City Transit Authority, 67 NY2d 219, 226 [citations omitted]
However, res ipsa loquitur does not create a presumption in favor of the plaintiff but merely permits the inference of negligence to be drawn from the circumstance of the occurrence. The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may -- but is not required to -- draw the permissible inference (id.).

On the instant application, the Court can not conclude that Claimant has satisfied the elements to apply the doctrine of res ipsa loquitur and resolution of same must await a trial. Moreover, the Court notes that in addition to the allegedly improperly dispensed medication, Claimant was also taking or was to take a medication referred to as Elavil, which he refused on or about March 15, 2001. Nowhere in the record does Claimant establish which, if any of the medications or lack thereof, might have caused the symptoms described by Claimant as his injuries. In this regard, Claimant's application is devoid of any evidence - expert or otherwise - from which the Court could make such a finding (see gen Spensieri v Lasky, 94 NY2d 231; Albert v State of New York 51 AD2d 611) . The failure to establish causation is fatal to Claimant's application for summary judgment.

Turning to the allegations of retaliation, Claimant's first cause of action, Claimant has failed to establish, in light of his admission that he did send the medication bottles out of the facility, that the discipline was improperly motivated. Claimant will be free at trial to establish his theory that the sergeant improperly obtained his medical information in order to prosecute the disciplinary ticket.

Accordingly, Claimant's motion for summary judgment is denied. The Court will mark this Claim ready for trial and it will be scheduled for trial as soon as practicable.

July 21, 2004
Albany, New York

Judge of the Court of Claims

[1] Exhibit J, consisting of two prescription bottles and their contents, has been delivered to the Chief Clerk's office for safekeeping.
[2] These papers are not in proper Affidavit form (see CPLR )for consideration by the Court as they are simply signed by Claimant.